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Statutory Instruments

2011 No. 1396

Charities

The Charities (Pre-consolidation Amendments) Order 2011

Made

2nd June 2011

Coming into force in accordance with article 1

This Order is made in exercise of the powers conferred by sections 74(2) and (7), 76 and 78(6) of the Charities Act 2006(1).

The Minister for the Cabinet Office is satisfied that the amendments made by this Order will facilitate, or are otherwise desirable in connection with, the consolidation of enactments relating to charities(2).

A draft of this Order has been laid before Parliament in accordance with section 74(4) and (5) of that Act and approved by resolution of each House of Parliament.

Accordingly, the Minister makes the following Order:

Citation and commencement

1. This Order may be cited as the Charities (Pre-consolidation Amendments) Order 2011 and comes into force (in accordance with section 76(3) of the Charities Act 2006) immediately before the Charities Act 2011 comes into force.

Amendments of enactments relating to charities

2.—(1) The Schedule (which contains amendments of enactments relating to charities) has effect.

(2) Subject to paragraph (3), any amendment made by the Schedule has the same extent as the provision amended.

(3) The amendment of section 1 of the Recreational Charities Act 1958(3) made by paragraph 1 of the Schedule has the same effect in relation to the law of Scotland and Northern Ireland as the amendment of that section by section 5 of the Charities Act 2006(4).

Nick Hurd

Parliamentary Secretary

Cabinet Office

2nd June 2011

Article 2

SCHEDULEAMENDMENTS OF ENACTMENTS RELATING TO CHARITIES

1. In section 1(1) of the Recreational Charities Act 1958(5), for “the principle that a trust or institution to be charitable must be for the public benefit” substitute “the requirement in section 2(1)(b) of the Charities Act 2006 that a purpose falling within section 2(2) of that Act must be for the public benefit if it is to be a charitable purpose”.

(4) Any regulations made or having effect as if made under section 85 of that Act are to be read as if any reference in the regulations to the furnishing of a document were a reference to the provision of the document.

8.—(1) In section 14(5)(c) of that Act, for “such claim” substitute “claims made in accordance with paragraph (b)”.

(2) In section 14(6)(a) of that Act(17), for “any such claims” substitute “claims made in accordance with subsection (5)(b)”.

“(7)In this section references to the original purposes of a gift are to be read, where the application of the property given has been altered or regulated by a scheme or otherwise, as referring to the purposes for which the property is for the time being applicable.”.

10.—(1) In section 17(2) of that Act(19), omit “and a draft of the order shall be laid before Parliament”.

(2) After section 17(2) of that Act insert—

“(2A)Subject to subsections (3) and (5), an order under subsection (2) is subject to annulment in pursuance of a resolution of either House of Parliament.”.

(3) In section 17(3) of that Act—

(a)omit “Without prejudice to the operation of section 6 of the Statutory Instruments Act 1946 in other cases,”, and

(b)for “the order shall not be made unless the draft has been approved by” substitute “no order may be made unless a draft of the order has been laid before and approved by a”.

11.—(1) In section 18(12) of that Act(20), for “under this section otherwise than by virtue of subsection (1)” substitute “by virtue of subsection (2), (4) or (5)”.

(2) In section 22(3) of that Act(21), for “section 18” substitute “section 18(1)(iii)”.

12.—(1) In section 20(2)(b) of that Act(22), for “to the parish or community council (or, where a parish has no council, to the chairman of the parish meeting)” substitute “to—

(i)the parish council or, if the parish has no council, the chairman of the parish meeting, or

(ii)the community council or, if the community has no council, the council of the county or the county borough.”.

(2) In section 79(7) of that Act(23), in paragraph (a) for “for references in subsections (1) and (2)” substitute “for references in subsection (1)” and after paragraph (a) insert—

“(aa)for references in subsection (2)(24) to a parish, a parish council or a parish meeting there shall be substituted respectively references to a community, a community council or the council of the county or (as the case may be) county borough;”.

13. In section 22(1) of that Act, after “orders of the court” insert “in the same way”.

14. In section 26(3) of that Act—

(a)for “thereby authorised” substitute “authorised by the order”, and

(b)for “therewith” substitute “with that authority”.

15. In section 36(4)(a) of that Act(25), omit “or of the Incorporated Society of Valuers and Auctioneers”.

16. In section 39(1) of that Act(26), for “registered disposition” substitute “registrable disposition”.

17.—(1) In section 43(1) of that Act(27), for “£100,000 or such other sum as is” substitute “the sum”.

(2) In section 43(9) of that Act(28), for “, of a charity for a financial year” substitute “for a financial year of a charity which is a company”.

18. In section 43A(5) of that Act(29), for “Commission” substitute “Charity Commission”.

19.—(1) In section 57(1) of that Act(30), for “and shall preserve all documents sent to it under this Part of this Act” substitute “and documents sent to the Commission under this Part shall be kept by the Commission for such period as it thinks fit”.

(2) For section 57(2) of that Act substitute—

“(2)Documents kept under this section are to be open to public inspection at all reasonable times; and any person who is provided with a copy or extract of any document kept under this section may require it to be certified by a certificate signed by a member of the staff of the Commission.”.

20. In section 69I(3)(b) of that Act(31), for “register of friendly societies” substitute “mutual societies register”.

21. In section 69M(5) of that Act(32), after “The resolution” insert “of the transferor CIO”.

(2) Nothing in sub-paragraph (1)(a) affects the operation of sections 73D and 73E(35) of the 1993 Act in relation to a person who is, or has been, a reporting accountant appointed to examine or report on a charity’s accounts relating to a financial year beginning before 1st April 2008.

23. In section 74B(11) of that Act(36), for “any reference to any obligation imposed on the charity trustees by or under section 74 includes” substitute “the references in sections 74(8)(b) and 74A(2) to any obligation imposed on the charity trustees by or under section 74 include”.

24.—(1) In section 79(2) of that Act, omit “, ratepayers”.

(2) Nothing in sub-paragraph (1) affects any appointment of a charity trustee made before the commencement of that sub-paragraph.

(3) Where, immediately before the commencement of sub-paragraph (1)—

(a)the charity trustees of a parochial charity included one or more persons elected by ratepayers, or

(b)the sole charity trustee of a parochial charity was elected by ratepayers,

then, on and after the commencement of that sub-paragraph, section 79(2) of that Act has effect in relation to that parochial charity as if the person or persons so elected had been elected by the local government electors.

25. In section 80(1) of that Act(37), after “in relation to a charity” insert “; and for the purposes of section 31A(10) as it has effect by virtue of this subsection, the reference in section 31A(10)(b) to the charity trustees of the charity is to be read as a reference to the persons having the general control and management of the administration of the recognised body”.

26. In section 82 of that Act—

(a)in subsection (1), for “assurances or other deeds or instruments” substitute “documents”, and

30. In the definition of “financial year” in section 97(1) of that Act(42), for the words following paragraph (b) substitute “but this is subject to any provision of regulations made by virtue of paragraph 3(5) of Schedule 5A to this Act (financial years of subsidiary undertakings).”.

(a)in the first entry relating to section 56(4) of the 1993 Act, in column 1, omit “of a charity”;

(b)in the entry relating to section 61(1) or (2) of that Act—

(i)in column 1 omit “a charity which is”; and

(ii)in column 2 omit “(b) the charity itself”;

(c)in each of the entries relating to section 50(1), 56(4) and 61(1) or (2) of that Act, in column 2, after “trustees of the charity” insert “(within the meaning of section 62 of this Act)”;

(d)for the entry relating to section 69(4) of that Act substitute—

“1

2

3

Order made by the Commission under section 69(4) of this Act(44) in relation to a charity which is a company, or a decision of the Commission not to make such an order in relation to such a charity.

The persons are—

(a)

the charity trustees of the charity,

(b)

the charity itself,

(c)

in the case of a decision not to make an order, the auditor, and

(d)

any other person who is or may be affected by the order or the decision.

Power to—

(a)

quash the order or decision and (if appropriate) remit the matter to the Commission;

(b)

substitute for the order any other order of a kind the Commission could have made;

(c)

make any order which the Commission could have made.”

(e)in—

(i)the second entry relating to section 69E of that Act, in column 1,

(ii)the entry relating to section 69H of that Act, in column 1, and

(iii)the second entry relating to section 69K of that Act(45), in column 1,

for “not to grant” substitute “to refuse”;

(f)in the second entry relating to section 69M(1) of that Act, in column 1, for “not to confirm” substitute “to refuse to confirm”;

(g)after the entry relating to section 96(5) or (6) of that Act(46) insert—

“1

2

3

Order made by the Commission under paragraph 6(5), or by virtue of paragraph 7(2), of Schedule 5A to this Act requiring the group accounts of a parent charity to be audited.

The persons are—

(a)

the charity trustees of the parent charity,

(b)

(if a body corporate) the parent charity itself, and

(c)

any other person who may be affected by the order.

Power to—

(a)

quash the order;

(b)

substitute for the order any other order which could have been made by the Commission;

(c)

add to the order anything which would have been contained in an order made by the Commission.

Order made by the Commission by virtue of paragraph 8(4) of Schedule 5A to this Act in relation to a member of a group, or a decision of the Commission not to make such an order in relation to a member of a group.

The persons are—

(a)

the charity trustees of the member of the group,

(b)

(if a body corporate) the member of the group itself,

(c)

in the case of a decision not to make an order, the auditor, independent examiner or examiner, and

(d)

any other person who is or may be affected by the order or the decision.

Power to—

(a)

quash the order or decision and (if appropriate) remit the matter to the Commission;

(b)

substitute for the order any other order of a kind the Commission could have made;

(c)

make any order which the Commission could have made.”

32. In Schedule 3 to that Act(47), in column 2, in paragraphs 1, 2(iii), 3, 3A, 4(iii) and 4A(iii), for “comprising” substitute “which includes” and in paragraphs 5 and 6, for “comprising or adjacent to the area in column 1” substitute “which—

(i)includes, or include, the area in column 1, or

(ii)is, or are, adjacent to the area in column 1”.

33. In Schedule 5A to that Act—

(a)at the end of paragraph 6(7) insert “; and references in this Act to an auditor have effect in relation to sub-paragraph (4)(c) as references to the Auditor General for Wales acting under sub-paragraph (4)(c) as an auditor.”;

(b)in paragraph 8—

(i)in sub-paragraph (2)(e), for “or those applied” substitute “or of section 43(3) of this Act as applied”;

(ii)at the end of sub-paragraph (4) insert “and for this purpose the reference in section 44(2)(b) to the charity trustees for the time being of the charity concerned is to be construed as a reference to the charity trustees for the time being of such member of the group as the Commission thinks appropriate.”; and

(c)in paragraph 9(1) omit “and (7)”.

34. For the avoidance of doubt, in Schedule 7 to that Act, the reference to section 10 of the Universities of Durham and Newcastle-upon-Tyne Act 1963(48) is to be read as being, and as always having been, a reference to section 18 of the 1963 Act.

(b)sections 27(5) and 33N(10) of the Further and Higher Education Act 1992(73),

for ““charity” and “charitable purposes” have the same meanings” substitute ““charitable purposes” has the same meaning”.

45. In section 58(1)(a) of the Housing Act 1996(74), for ““charity” and “trusts”, in relation to a charity, have” substitute ““trusts”, in relation to a charity, has” and in section 64 of that Act omit the entry relating to “charity”.

46.—(1) In section 23(4)(a) of the School Standards and Framework Act 1998, for ““charity” and “institution” have” substitute ““institution” has”.

(2) In Schedule 1 to that Act(75), in paragraph 10, for “within the meaning of the Charities Act 1993, and is an institution to which section 3A(4)(b) of that Act” substitute “and is an institution to which section 3A(4)(b) of the Charities Act 1993”.

47. In section 63(1) of the Companies (Audit, Investigations and Community Enterprise) Act 2004(76), in the definition of “English charity”, for “within the meaning of the Charities Act 1993 (see section 96 of that Act)” substitute “as defined by section 1(1) of the Charities Act 2006”.

48. In—

(a)section 42(1) of the Criminal Justice and Court Services Act 2000(77), and

for ““charity” and “charity trustee” have the same meanings” substitute ““charity trustee” has the same meaning”.

EXPLANATORY NOTE

(This note is not part of the Order)

This Order makes minor amendments to the Recreational Charities Act 1958, the Charities Acts 1993 and 2006 and other legislation which facilitate, or are otherwise desirable in connection with, the consolidation of charity legislation by the Charities Act 2011. The Order will come into force immediately before the 2011 Act comes into force.

The amendments in the Schedule to the Order can be categorised broadly as: desirable to clarify the legislation or remove an element of ambiguity from it or necessary to remedy missed consequential provisions or clarify the definition of charity that is to apply for the purpose of various Acts of Parliament.

A detailed explanation for each provision of the Schedule has been included in the annex to the Explanatory Memorandum which is available alongside the Order on www.legislation.gov.uk.

A Regulatory Impact Assessment has not been prepared for this Order as it has no impact on business, charities or voluntary bodies.

Schedule 3 was amended by the Local Government (Wales) Act 1994, Schedule 16, paragraph 101(5) and (6).

(48)

1963 c. xi. Schedule 1 to the 1963 Act was amended by the University and College Estates Act 1964 (c.51), Schedule 4.

(49)

1965 c.12. Section 5A was inserted by the Co-operatives and Community Benefit Societies Act 2003 (c.15), section 2. Section 7D was inserted by the Co-operatives and Community Benefit Societies Act 2003, section 3, and amended by the Charities Act 2006, Schedule 8, paragraph 47. The 1965 Act is prospectively re-named by the Co-operative and Community Benefit Societies and Credit Unions Act 2010 (c.7), section 2.

(50)

1996 c.14. There are no amendments of Schedule 5 relevant to this Order.

(51)

1967 c.88. Section 1(3A) was inserted by the Leasehold Reform, Housing and Urban Development Act 1993 (c.28), section 67. Section 1(3A) was amended by the Housing Act 1996 (c.52), Schedule 9, paragraph 2(2), and by the Housing and Regeneration Act 2008 (c.17), Schedule 16. The amendments made by the 2008 Act are not yet fully in force.

(52)

1976 c.80. Section 5(3)(f) was amended by the Rent Act 1977 (c.42), Schedule 23, paragraph 73, and by the Charities Act 1993, Schedule 6, paragraph 30. There are other amendments of section 5 of the 1976 Act not relevant to this Order.

(53)

1977 c.42. Section 15(2)(b) was amended by the Charities Act 1993, Schedule 6, paragraph 30. There are other amendments of section 15(2) not relevant to this Order.

1968 c.55. Section 4A was inserted by S.I. 1996/1738, article 8. There are amendments of section 4A not relevant to this Order. The 1968 Act is prospectively re-named by the Co-operative and Community Benefit Societies and Credit Unions Act 2010, section 2.

(60)

1974 c.46. Section 32A was inserted by S.I. 1996/1738, article 10. There are amendments of section 32A not relevant to this Order.

Section 96, so far as relating to the meaning of charity, was amended by the Charities Act 2006, Schedule 8, paragraphs 96 and 173 and by the Church of England (Miscellaneous Provisions) Measure 2000 (No. 1), section 11.

(63)

1985 c.68. The definition of “charity” in section 622(1) was amended by the Charities Act 1993, Schedule 6, paragraph 30. There are other amendments of section 622(1) not relevant to this Order.

(64)

There are amendments of section 169 not relevant to this Order.

(65)

The definition of “charity” in section 58(1) was amended by the Charities Act 1993, Schedule 6, paragraph 29(5). There are other amendments of section 58(1) not relevant to this Order.

(66)

1998 c.31. Section 23A was inserted by the Education and Inspections Act 2006 (c.40), section 33. Paragraph 8A of Schedule 22 was inserted by the Education and Inspections Act 2006, Schedule 4, paragraph 13. There are amendments of section 23A(10) and paragraph 8A not relevant to this Order.

Section 27(5) was amended by the Further Education and Training Act 2007 (c.25), Schedule 1, paragraph 8. Section 33N was inserted by the Apprenticeships, Skills, Children and Learning Act 2009, Schedule 8, paragraphs 1 and 3. There are amendments of section 33N not relevant to this Order.

2004 c.27. The definition of “charity” in section 63(1) was substituted for the definition, as originally enacted, by S.I. 2007/1093, Schedule 4, paragraph 24(3). The definition of “English charity” in section 63(1) was inserted by S.I. 2007/1093, Schedule 4, paragraph 24(4).

(77)

2000 c.43. There are amendments of section 42 not relevant to this Order.

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